Monday, September 28, 2015

It happens -- a client asks for a new lawyer, says things to the court that perhaps make the lawyer look bad. Like an incompetent, uncaring, inattentive lawyer. And the lawyer may react defensively, denying the accusations even at the cost of the client's credibility. After all, that seems unfair to let the accusations stand without a public answer.

But that response may, even setting aside the ethical implications, render counsel constitutionally ineffective. Adverse positions between the attorney and client may present an actual conflict of interest that allows a presumption of prejudice.

Lopez v. Scully, a Second Circuit case, lays out the conflict. There, Mr. Lopez alleged that counsel had coerced him to plead guilty. “At
that point, the attorney had an actual conflict of interest: to argue in favor of his
client's motion would require admitting serious ethical violations and possibly subject
him to liability for malpractice; on the other hand, any contention by counsel that
defendant's allegations were not true would contradict his client. As it happened, the
attorney put his own interests ahead of his client's by denying the truth of Lopez's
allegations and thereby attacking his own client's credibility.” The Second Circuit presumed prejudice because there was an actual conflict
that arose when counsel "undermined his client's
credibility moments earlier by denying the truth of the allegations in the pro se
motion."

And so concluded the Lopez court: “Given this abdication of the attorney's role
as advocate when the judge had the discretion to impose a lower sentence and
arguable grounds for leniency existed, we believe that Lopez has shown that an
actual conflict of interest adversely affected his attorney's performance in violation of
his Sixth Amendment right to effective assistance of counsel.”

The Tenth Circuit came to a similar conclusion inUS v. Collins, and the Seventh Circuit did so in US v. Morris -- "Morris has shown that an actual conflict of interest . . . [his attorney] would seem to have a self-interest in protecting himself from a
malpractice claim. However, Morris's argument was predicated on [the lawyer's] purportedly false advice . . . . In situations such as Morris's, courts have presumed
prejudice.”

The ethical implications are also damning if not handled carefully. But that's for another post.

Tuesday, September 22, 2015

A
Kansas presumptive probation sentence might not qualify as a federal felony, regardless of whether the underlying state prison sentence exceeded 12 months.
A federal felony is generally defined as a conviction punishable by a term of imprisonment exceeding one year. A
presumptive probation sentence is not, absent a dispositional departure, subject
to imprisonment for any term.

Kansas
sentences are controlled exclusively by the sentencing grid. Unlike the federal
statutory ranges that fence the advisory guidelines, the state grids are the statutory range in Kansas. If the
projected sentence falls within a presumptive probation box – as opposed to a
presumptive prison or “border box” where the court can go either way – the
judge cannot impose a prison sentence
(caveat below). If the state court
could not have imposed a prison sentence, then the conviction is not one that
carries a “term of imprisonment exceeding one year.”

Key question: What options did the state
court judge have at the moment the defendant, with her recidivist record,
appeared for sentencing? If prison was not an option, then it was not a conviction
punishable by a term of imprisonment exceeding one year.

Not questions: What sentence was actually
imposed? What sentence could another person could have received? What could the
sentence theoretically be if the prosecution had proceeded differently?

Brooks
2.0: The
reasoning is the same as in US v. Brooks, decided in 2014. There, the
Tenth Circuit said that a Kansas sentence of imprisonment that could not have
exceeded 12 months was not a felony, as defined by federal law. “[I]n determining
whether a state offense was punishable by a certain amount of imprisonment, the
maximum amount of prison time a particular defendant could have received
controls, rather than the amount of time the worst imaginable recidivist could
have received.” It follows from Brooks
that when the defendant stands before the court in a presumptive probation box,
and a prison sentence cannot be imposed, it is not
a conviction punishable by a term of imprisonment exceeding one year.

Caveat: In a Brooks scenario, if the state prosecution actually sought a
durational departure – that is, a sentence that exceeded the high number in the
grid box – then that could have allowed the state court to sentence in excess of 12
months. In that event, the defendant would be back in federal-felony land. Here,
the question is not a durational departure, but a dispositional departure. The state
prosecution can, in some circumstances, pursue a dispositional departure, that is, a prison sentence rather than the presumptive probation that the grid calls for. But
if those procedures were not followed, and the court only had discretion to
impose a non-custodial sentence, it is not a conviction punishable by
imprisonment. Other conditions, such as mandatory drug treatment, may complicate the argument, but
it should still prevail.

Other examples of complications arise in US v. Romero-Leon, an unpublished
decision from the Tenth Circuit that applied Brooks to a New Mexico prior conviction. There, the defendant was
not subject to more than ten years imprisonment on a prior New Mexico drug
conviction, thus the state conviction could not qualify as an ACCA predicate. The
government raised several arguments about how, under the New Mexico system,
things could have turned out differently. All were rejected. Remember, from Carachuri-Rosendo, the Supreme Court rejected federal back-peddling
on state proceedings, “Were
we to permit a federal immigration judge to apply his own recidivist
enhancement after the fact . . . we would denigrate the independent judgment of
state prosecutors to execute the laws of those sovereigns."

The Result: A presumptive probation
sentence might not qualify as an element of a felon-in-possession charge or as an
aggravated felony for illegal reentry purposes. It may not support a statutory
sentence enhancement like ACCA or an 851 increase. It may not increase base
offense levels (2K2.1) or trigger the career offender guideline (4B1.1).

It is
extremely important to check and double-check your client’s criminal history. Presumptive
probation covers a fair amount of landscape on the grids, both drug and non-drug.

Reminder: The District of Kansas Fall CLE
(Oct 8 in Wichita, Oct 9 in Lawrence) is all about predicate offenses. A whole
day of nothing but predicate offense fun. Well, almost a whole day. Because
this is really important stuff, and not always that easy to unpack. See www.kansasfpd.org
for details. The CLE and lunch are free.

Sunday, September 20, 2015

FRE 404(b) evidentiary doctrine is a bit of a mess. Complicating that mess is the government's claim that evidence is “inextricably intertwined” with the offense charged. Here is a recent footnote from a Fourth Circuit decision:

Expungement lies within the equitable discretion of the court. District courts in this and certain other circuits have ancillary jurisdiction over applications for orders expunging convictions. A request for expungement is usually is granted only in extreme circumstances after examining it individually on its merits to determine the proper balancing of the equities. Specifically, the government's need to maintain arrest records must be balanced against the harm that the records can cause citizens (internal footnotes and quotations omitted).

The Court was particularly compassionate toward Jane Doe and the harm suffered from the old conviction. She is Haitian immigrant and single mother solely responsible for the care of her children, but supporting them was extremely difficult because of her record. "Doe gets hired to fill home health aide and similar positions only to be fired when her employers learn through subsequent background checks about her conviction. Since the conviction was for health care fraud, it's hard to blame those employers for using the conviction as a proxy for Doe's unsuitability." This was not a light undertaking for the Court, which "reviewed every page of the extensive file that was created during her five years under probation supervision" and efforts to remain gainfully and legitimately employed.

This is a rich opinion, even beyond the rarity of the legal issue. The Court did not limit consideration to the facts of this case, but looked to broader issues of race and collateral consequences:

A criminal record poses an especially high barrier to employment. Nearly seventy percent of U.S. employers now perform some form of criminal background check on prospective employees. A criminal record exacerbates the increased difficulty that older workers like Doe already face in the job market. Those difficulties are further exacerbated by race. Doe is black, and studies show that her race is even more of an impediment to her employment prospects than her conviction.

Echoing the Supreme Court in Gall v. US, Judge Gleeson noted that Doe had been punished, "As the Supreme Court has made clear, while prison terms are qualitatively more severe, Doe's five-year term probation was serious punishment.Moreover, intermediate sanctions, like the ten-month period of home detention with electronic monitoring I imposed upon Doe, can inflict meaningful additional punishment without risking the loss of a defendant's children to foster care. Anyone who is not persuaded that home detention is real punishment need only review the section of Doe's probation file that is devoted to the home confinement condition."
Rejecting all of the Government's opposition, Does's expungement was granted. The remedy was broad:

1. The government's arrest and conviction records, and any other documents relating to this case, be placed in a separate storage facility,

2. Electronic copies of these records or documents and references to them be deleted from the government's databases, electronic filing systems, and public record.

3.Doe's real name is to be removed from any official index or public record.

4. The records are not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and only when necessary for such an investigation.

5. The government and any of its agents may not use these records for any other purpose, nor may their contents be disseminated to anyone, public or private, for any other purpose.

"Doe is one of 65 million Americans who have a criminal record and suffer the adverse consequences that result from such a record. Her case highlights the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully." Let's hope there is a fresh look, and that more courts, and perhaps even Congress, are willing to follow Judge Gleeson's lead.

Monday, September 7, 2015

Johnson v. U.S. invalidated the residual clause of the Armed Career Criminal Act, a statute, as unconstitutionally vague. The advisory Guidelines has a synonymous residual clause. The question after Johnson, or one of the questions, is whether the courts will treat the Guideline residual clause in the same way -- that it is too vague to be relied on to increase either offense levels or criminal history. This implicates career offenders, under section 4B1.2, and any guideline that relies on that residual clause to define crimes of violence.

Last week, the Tenth Circuit spoke to this issue, albeit in an unpublished decision. In U.S. v. Goodwin, the defendant was convicted of felon-in-possession and his guideline was figured under section 2K2.1. His prior conviction for first degree criminal trespass counted as a crime of violence, as defined by the residual clause of section 4B1.2(a)(2) -- the conviction involved "conduct that present[ed] a serious risk of physical injury to another."

Goodwin ultimately decided that the Guideline residual clause must fall under Johnson. Goodwin was remanded for resentencing, with instructions that the criminal trespass prior conviction was not to factor as a crime of violence.
The Government "concede[d], in light of Johnson, that Mr. Goodwin’s criminal trespass conviction may no longer be deemed a crime of violence.” But because Goodwin had not objected at sentencing, the Government continued to press that the issue had been forfeited and was subject to plain error review. Goodwin did not, despite the Government concession or the intervening Supreme Court case in Johnson, file a reply brief. Still, the Court found that in light of the government concessions, "the stringency of the plain-error standard [was] of little moment," an incredibly welcome and forgiving posture on plain error, given other Tenth Circuit case law.

The fundamental legal question here is whether the constitutional vagueness doctrine applies to the advisory Guidelines. The Tenth, for the purposes of Goodwin, assumes it does without deciding the issue, as it has done in other cases (see fn. 2). It does note, however, a circuit split. But after Peugh v. US in 2012, the Supreme Court case that applied the constitutional doctrine of ex post facto to the Guidelines, it seems that the same should hold true here. So far, so good, at least in the Tenth Circuit.